Gang loitering and race.

• Author: Rosenthal, Lawrence

When the United States Supreme Court held in City of Chicago v. Morales(1) that Chicago's anti-gang loitering ordinance--authorizing the police to disperse groups of loiterers containing criminal street gang members(2)--was unconstitutionally vague, Harvey Grossman, the attorney who had argued the case for the winning side, called the decision "a victory for `young men of color.'"(3) That may seem a strange thing to say about a case in which no claim of racial discrimination was made by the parties or passed upon by the Court,(4) but Mr. Grossman's reaction was far from idiosyncratic. Questions of racial fairness are consistently raised by the critics of anti-loitering and other public order laws.(5) Dorothy Roberts, for example, sees the Court's holding in Morales as reflecting a concern about the risk of racial bias in the enforcement of public order laws.(6) Under Chicago's anti-gang loitering ordinance, she contends, the potential for police abuse was especially high: "With no criminal conduct to go by, police officers probably used race as a critical factor in judging whether an individual might be a gang member."(7) The inevitable racial friction that this type of law will produce, Professor Roberts argues, reinforces patterns of racial subjugation.(8) David Cole makes a similar argument and adds that when minorities perceive this type of unfairness in the criminal justice system they "have less incentive to play by the rules, and accordingly, double standards in law enforcement actually contribute to criminal conduct in those neighborhoods that are already most at risk of criminal behavior for socioeconomic reasons."(9)

The decision in Morales makes the questions raised by Professors Roberts and Cole even more urgent. The Court found the ordinance vague because it permitted enforcement against loiterers engaged in entirely "innocent" activities, but added that a law directed at loitering by groups containing gang members would sufficiently limit enforcement discretion "if the ordinance only applied to loitering that had an apparently harmful purpose or effect...."(10) Justice O'Connor, in a concurring opinion joined by Justice Breyer, added that an anti-gang loitering law should be upheld if it defined loitering as "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(11) Thus, the Court appears to have endorsed anti-loitering laws when loitering has an "apparently harmful purpose or effect"; a standard for judging loitering laws far more lenient than can be found in prior precedents.(12) Chicago has taken the Court's hint. The Chicago City Council recently enacted a new anti-gang loitering ordinance that authorizes police officers to order groups containing members of criminal street gangs to disperse when they are engaged in "gang loitering"(13). The new ordinance defines "gang loitering" as "remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(14) The new ordinance also defines "criminal street gang" in terms that track the federal racketeering statute's definition of "racketeering activity."(15) The City Council enacted a companion anti-drug loitering measure as well.(16)

While narrower than the original anti-gang loitering ordinance, these revised measures nevertheless provide a potent prophylactic policing tool: they authorize dispersal orders whenever the police reasonably believe that gang or drug activity is afoot. Indeed, a nationwide trend seems to be underway to enact anti-loitering laws as part of the movement toward community-oriented and order-maintenance policing.(17) And because laws drafted to comply with the Morales decision are likely to withstand attack on other grounds, future debate on the fairness of public order laws is likely to focus on whether they can be fairly applied to racial minorities.(18)

To date, the debate over public order laws has largely been framed in terms of the supposed virtues and vices of order maintenance as a policing strategy. The advocates of public order laws argue that visible disorder in a community stimulates the commission of more serious crimes,(19) and that a policing strategy based on order maintenance is of particular benefit in inner-city minority communities, where social disorder is a particularly serious problem.(20) Critics of public order laws take the opposite tack; they question the relationship between disorder and crime,(21) and argue that the police are likely to unfairly target persons of color as "disorderly."(22) Largely missing from this debate, however, is an effort to evaluate public order laws in light of the considerable research that has been done in the past few decades on the ecology of the inner city. That research, I will argue, suggests a different kind of case to be made on behalf of public order laws.

Thus, in an effort to advance the debate over public order laws, I will focus not on the controversial relationship between disorder and crime, but on the ecology of the inner city. In particular, I intend to focus on the work identifying an inner-city, disproportionately minority "underclass," and on the implications of that concept for crime control. Underclass theorists assert that as a consequence of structural changes in the economy, coupled with the continuing effects of racism, an "underclass" has emerged that faces much more restricted opportunities for upward mobility than existed in the urban slums of earlier eras.(23) I focus on the concept of an "underclass" not only because it has such wide acceptance among students of the inner city, but also because it sheds so much light on the racial dimension of inequality in America. Underclass theory's special value lies in its ability to explain why the traditional vehicles for upward mobility have failed so many inner-city minorities. There have been insufficient attempts, however, to apply the teachings of underclass theory to criminal justice policy, and, in particular, to gang crime, the particular form of lawlessness that most profoundly affects inner-city underclass communities.

This effort to consider the implications of underclass theory for inner-city gang crime begins with the evidence showing the dimensions of the problem that gang crime poses for the inner city. The emergence of entrenched criminal street gangs, I will then argue, is the natural consequence of the emergence of an entrenched urban underclass.(24) Gang crime in an underclass community has a predictable pattern, resulting in a thoroughly destabilized and demoralized community in which drug trafficking comes to be seen as one of the few economic opportunities available. Unless rampant gang criminality in underclass neighborhoods is curbed, the ability of other social and economic policies to ameliorate the plight of underclass communities is at best limited. I will also argue that an anti-loitering strategy is a vehicle for attacking conditions conducive to the success of street gangs without relying on mass incarceration strategies that impose enormously disproportionate burdens on minorities. From the standpoint of racial fairness, I will contend that the use of public order laws is preferable to conventional law enforcement strategies, both because public order laws address conditions that facilitate the success of inner-city gangs through relatively moderate police tactics, and because they are less susceptible to police abuse than the tactics that they replace.

The approach to criminal justice policy taken here long ago went out of fashion. In this era of harshly punitive criminal laws based on theories of retribution and deterrence, an effort to identify the root causes of inner-city crime may seem to many beside the point. But in my view, it is time for a rigorous reassessment of criminal justice policy in light of all that we have learned about the sociology and political economy of the inner city in the last thirty years--an inquiry rarely undertaken in the debate over public order laws. If poverty and racism are at the root of inner city crime, then the fairness of the harshly punitive regime reflected in current criminal justice policy--especially as represented by drug trafficking laws--is properly open to question. The sociology and political economy of the inner city also suggests, however, that if law enforcement is given no role to play in suppressing inner city crime, it is naive to think inner-city communities can be revitalized. Public order laws, I will suggest, can serve the twin goals of promoting racial fairness and revitalizing the inner city.

1. THE MAGNITUDE OF GANG CRIME

   Reliable statistics on gang membership and gang crime are hard to come by--there is no generally accepted methodology for identifying gangs, gang members, or gang-related crime.(25) Yet there is little genuine doubt that the problem of gang crime is of considerable proportion. The National Youth Gang Survey, a United States Department of Justice survey of law enforcement agencies nationwide, estimated that in 1998 there were 28,700 gangs in the United States with 780,200 members.(26) A survey of seventy-nine large and forty-three small-sized cities in the early 1990s found 249,324 gang members, 4,881 gangs, 46,359 gang-related crimes, and 1,072 gang-related homicides within a seventeen-month period.(27) The Los Angeles County Sheriff has estimated that Los Angeles County alone contains more than 1,200 gangs with more than 150,000 members,(28) The United States Attorney for the Northern District of Illinois has estimated that Chicago alone has some 125 street gangs with more than 100,000 members.(29)...